Former President Donald Trump has sued to keep the National Archives from turning documents over to the House Committee investigating the January 6 attack on the Capitol. These include notes, memos, and other papers that may shed light on the extent to which Trump, or members of his administration, were complicit in that attack. He claims that “executive privilege” allows him to prevent Congress from getting the documents.
Trump’s lawsuit raises two important questions. Does a former president have the right to claim executive privilege, or does the right belong only to the current occupant of the White House? If Trump does have such a right, does that mean that the papers will remain under lock and key, unavailable to the Committee?
The Watergate Nixon Tapes case provides a starting point. In 1974, a grand jury indicted seven individuals—all high-ranking members of the Nixon Administration—of conspiracy to obstruct justice and to defraud the United States. At the Special Prosecutor’s request, a federal judge issued a subpoena directing Nixon to produce the tapes in advance of the trial.
On July 24, 1974, the Supreme Court, three of whose members Nixon had appointed, unanimously ordered him to turn over the tapes. Chief Justice Burger, one of the three appointees, wrote that the President does have such a privilege, especially where military or diplomatic secrets are involved, but it is not absolute. Where the claim is based simply on a generalized assertion without showing a strong governmental interest, it must yield if the reason for the subpoena outweighs the interests of presidential confidentiality. The Court ordered Nixon to deliver the tapes, he did so, and 16 days later he resigned.
In the case of the January 6 documents, the stakes are huge. Trump wants to keep 724 pages away from Congress. What we know is that those documents include Chief of Staff Mark Meadows’s notes about the attack on the Capitol, Trump’s daily schedule, visitor logs and call records, and documents about trying to overturn the election.
Under the Presidential Recordings and Materials Preservation Act of 1974, Congress gave ownership of a President’s official records to the public and created a system whereby Congress could gain access to those records in order to conduct its business. Under that law, a former president can make the claim, but the current president has the last word. President Biden has rejected Trump’s claim as “not in the best interests of the United States,” thereby setting the stage for this lawsuit.
This is the first time that a former president has asserted executive privilege, the incumbent president has refused to go along, and the former president has challenged the constitutionality of the 1974 presidential records act. Just to be clear, Trump is arguing that under the Constitution he has the right to prevent disclosure “in perpetuity.”
On November 9, 2021, Judge Tanya Chutkan, a District of Columbia federal judge, issued a 39-page opinion denying Trump’s request for an injunction against the House Committee and the National Archives. Judge Chutkan ruled that Trump had failed to show a likelihood of success, which is one of the requirements for a preliminary injunction. She also ruled that he had not demonstrated ”irreparable harm,” which is another requirement.
On November 11, a panel of the District of Columbia Court of Appeals, consisting of two judges appointed by Obama and one judge appointed by Biden, issued an order putting Judge Chutkan’s decision on hold and temporarily blocking the Archives from turning the documents over to the Congressional committee. The Court made clear that its order was not to be taken as a ruling on the merits and scheduled a hearing for November 30.
Giving former President Trump an opportunity to present his arguments at a full hearing seems fair enough, but he is facing long odds. As Judge Chutkan wrote, “Presidents are not kings.”
I doubt that the Court of Appeals will wait very long before making its decision. If Trump loses, he will ask the Supreme Court to take the case. But I’m not sure it will. The Court did not grant review in any of Trump’s “stolen election” cases, and it may decide to stay out of this one as well.
If the Supreme Court does grant review, Trump will get a reprieve, but most likely a short one. This Court ordered him to turn his tax returns over to Congress, and it is no stretch to imagine the Justices, perhaps even all nine of them, deciding that the federal records act is constitutional and ordering the Archives to turn over the documents.
Such an outcome would be a victory for the rule of law and for democracy.